Allahabad High Court
Mahesh Chandra Shukla vs Achal Mishra Basic Shiksha Adhikari ... on 26 July, 2023
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:49118 Court No. - 5 [Reserved] A.F.R. Case :- CONTEMPT APPLICATION (CIVIL) No. - 695 of 2013 Applicant :- Mahesh Chandra Shukla Opposite Party :- Achal Mishra Basic Shiksha Adhikari Lakhimpur Kheri And Anr. Counsel for Applicant :- Nirmal Singh Yadav,Pawan Kumar Pandey,Sharad Pathak,Tej Pal Singh Counsel for Opposite Party :- Jyotinjai Verma,Ram Kumar Singh,Sandip Kr Yadav Hon'ble Irshad Ali,J.
C.M. Application No.11 of 2022
1. Heard learned counsel for the parties.
2. This is an application filed under Article 215 of the Constitution for the following directions:
"(1) to direct all the actions taken after 10.5.2013 being in violation of the order dated 10.05.2013 of the Hon'ble High Court in above contempt petition and based on fraud upon the Hon'ble High Court be declared void and entire proceedings relating to Section 506 I.P.C. in Case Crime no.207/2013, Case no.3922 of 2013, P.S. Wazirganj, District Lucknow be dropped/ closed and be set aside.
(2) to direct initiation of legal proceedings including criminal proceedings against those responsible for initiation and continuance of false case under Section 506 I.P.C.
(3) issue such other order or direction, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case, may also be passed in the interest of justice and equity."
3. Factual matrix of the case is that one person Mr. Krishna Kumar Pandey, who was holding the post of Accounts Officer at District Ambedkar Nagar at relevant point of time in the year 2013 and who was facing grave charges of financial embezzlement and against him, serious criminal cases are registered, has apparently succeeded in using Hon'ble High Court order passed on 10.05.2013 as a tool not only to protect him from effective enquiry against him, but also to affect the pairvi of the cases and to wreck vengeance against the then Basic Education Officer, the deponent who was making pairvi of cases and the then APP I/ Special Counsel/ respected and renowned member of the Awadh Bar at Hon'ble High Court, Lucknow who was appearing for the government servant in the above contempt petition at the relevant time on 10.05.2013 and affidavit was also filed by the government through him.
Since the order dated 10.5.2013 passed by this court in this contempt petition has been used as a tool against the deponent and two other innocent persons, the deponent is having no other alternative remedy except to file this application before this Court so that the actions taken in violation of the order dated 10.05.2013 may be declared void. It is well settled that no person can be allowed to suffer because of the action of Hon'ble court and the proceedings/ order, the basis of which is fraud, is to be set at naught/ nullified.
4. Learned counsel for the applicant submitted that order dated 10.5.2023 in the above contempt petition was passed on asking of Krishna Kumar Pandey and the same was affirmed on 18.02.2020. The order dated 10.05.2023 was against the then Senior Registrar (Sri Alok Mukherjee). The then Senior Registrar (Sri Alok Mukherjee) wrote letter dated 10.05.2013 to the S.S.P., Lucknow. The S.S.P., Lucknow wrote letter dated 10.5.2013 to the Station House Officer, Wazirganj, Lucknow. Though the order dated 10.5.2013 of the High Court and letter dated 10.5.2013 of the Senior Registrar finds mention in letter of S.S.P. dated 10.05.2013 but it is ensured with ulterior motive that the FIR be not lodged as per direction contained In the order dated 10.5.2013 of the Hon'ble High Court and the order dated 10.05.2013 of the Court and letter dated 10.5.2013 of the Senior Registrar be not made part of the case-diary.
5. Learned counsel for the applicant next submitted that Krishna Kumar Pandey, a man of bad incident, managed to lodge FIR dated 10.05.2013 with ulterior motive and ensure that the order of the Hon'ble High Court as well as letter of Registrar dated 10.05.2013 be not made part of the case diary.
6. Learned counsel for the applicant next submitted that deponent has inspected the file of Hon'ble High Court on 24.11.2022 and from perusal of the same which finds place at page no.3 of the record, makes it clear that Mr. Krishna Kumar Pandey initially did not name any person and his version of FIR is totally absent in original application given to Senior Registrar Sri Alok Mukherjee.
7. Learned counsel for the applicant next submitted that from perusal of the aforesaid, it is apparent that initially, there was no name mentioned and his version of FIR is totally absent in the application, but later on with ulterior motive to cover up serious financial and other irregularities to prevent their reporting to the government and to compel pairokar, government servant, special counsel to loose cases of State Government involving fraud and loot of State Exchequer by Sri Kirshna Kumar Pandey, Finance & Account Officer against whom affidavits in the petitions in Hon'ble High Court were filed and his conduct was also brought to the notice of Higher Authorities prior to 10.5.2013 and against whom serious criminal cases are registered, he manages to lodge F.I.R.
8. Learned counsel for the applicant next submitted that actually, this change of story has occurred because one Mr. Dhirendra Kumar singh, who was also Finance & Accounts Officer, Lakhimpur Khiri, who was in attendance before the Hon'ble High Court in the above contempt, against whom affidavit dated 10.5.2013 was filed by the government servant through APP I, against whom also the complaints were forwarded to the State government and enquiry was going on and against him serious criminal cases are registered connived with mr. Krishna Kumar Pandey. They wanted to encash the opportunity to build pressure upon those persons doing parivi of cases in which enquiry was going on.
9. Learned counsel for the applicant next submitted that Mr. Krishna Kumar Pandey after giving his first application to the Senior Registrar which has been quoted hereinabove, in which there is no name of any person including the deponent and his version of FIR is totally absent, after being provided security left the premises of Hon'ble High Court along with Mr. Dhirendra Kumar Singh on his Motorcycle bearing No.UP-32 XV3674 and he has given hand written note to the Senior Registrar.
10. Learned counsel for the applicant next submitted that the first report given by Mr. Krishna Kumar Pandey and hand written note givn by Mr. Krishna Kumar Pandey have never been made part of case-diary nor has ever surfaced in any proceedings and it has come to the knowledge of deponent only after inspection of record of the Hon'ble High Court on 24.11.2022.
It is worthwhile to mention that handwritten note given by Mr. Krishna Kumar Pandey are exactly same as the story was narrated to the Hon'ble High Court and the Hon'ble High Court passed the order on 10.5.2013 and therefore, in none of 4 documents i.e. order dated 10.5.2013, handwritten note dated 10.5.2013 by Shri Krishna Kumar Pandey, letter dated 10.5.2013 by the Senior Registrar and letter dated 10.5.2013 by the S.S.P., Lucknow there is no name of any person and his version of FIR is totally absent.
The story has been changed by Mr. Krishna Kumar Pandey in collusion with Mr. Dhirendra Kumar Singh at police station and they have almost succeeded in using order of Hon'ble High Court as a tool against the deponent and two other innocent persons and, therefore, the application under Article 226 of the Constitution of India is being filed.
11. Learned counsel for the applicant next submitted that FIR with ulterior motive to cover up serious financial and other irregularities to prevent their reporting to the government and to compel pairokar, Government servant, Special Counsel to loose cases of State Government involving fraud and loot of State Exchequer by Sri Krishna Kumar Pandey, a Finance & Accounts Officer against whom affidavits in the petitions in Hon'ble High Court were filed and his conduct was also brought to the notice of higher authorities prior to 10.5.2013 and against whom, serious criminal cases are registered, comes into existence thanks to Shri Alok Kumar Mukherjee.
12. Learned counsel for the applicant next submitted that the then Senior Registrar wrote another letter dated 14.5.2013 to the then S.S.P., Lucknow. The letter dated 10.5.2013 of Senior Registrar is made part of the case diary. He next submitted that on 15.5.2015 Investigating Officer is changed and Circle Officer who is below the rank of Additional Superintendent of Police was made Investigating Officer.
13. Learned counsel for the applicant next submitted that tainted and manipulated investigation results in filing of chargesheet allegedly on 20.6.2013 under Section 506 IPC by backdating the same which is evident from perusal of case diary itself. He next submitted that tainted and manipulated investigation and tainted and manipulated further investigation resulting in charge sheet under Section 506 IPC lasted till March, 2015.
14. Learned counsel for the applicant next submitted that specific request was made vide letter Ptrank: Vad/9837-41/2013-14 dated 31.01.2014 copy of which was to higher authorities for insuring bringing of case diary along with report to the Hon'ble Court in compliance of Hon'ble Court's order dated 10.05.2013, but this letter is neither part of the case diary nor is known as to what has been done with it by Sri Alok Kumar Mukherjee the then Senior Registrar.
15. Learned counsel for the applicant next submitted that to affect the pairvi of the cases Sri Krishna Kumar Pandey stopped salary of the Pairokar of the department. The department came down heavily upon him. Writ Petition No.415 (MB) of 2014 (Krishna Kumar Pandey v. State of U.P. and others) was filed by him. He narrated the events of 10.5.2013 in his own ways and chargesheet under Section 506 IPC was made annexure. The Hon'ble High Court got an inquiry conducted against him in his writ petition and on receiving adverse report against him the Hon'ble High Court referred the matter to the Government. In respect of aforesaid averments letter dated 26.11.2014 written by Special Secretary to Finance Secretary for action against him is relevant.
16. Learned counsel for the applicant next submitted that the then District Magistrate, Ambedkar Nagar wrote letter dated 1.6.2014 to the Director Treasury, U.P., Lucknow copy of which was forwarded to Principal Secretary, Basic Education and Principal Secretary, Finance, narrating the conduct of the Mr. Krishna Kumar Pandey is not part of the case diary though brought to the notice of I.O.
17. Learned counsel for the applicant next submitted that letter dated 11.11.2013 containing statement of the deponent under Section 161 Cr.P.C. is part of the above contempt petition, but not part of the case diary. He next submitted that preparation of fake letters/ documents causing disappearance of documents including order of Hon'ble High Court, record pertaining to contempt petition no.688/2013 by not making them part of the case diary changing pages of case diary was done due to extraneous considerations.
18. Learned counsel for the applicant next submitted that in the case diary dates on which supervisory officer has seen the case diary went missing since 16.5.2013. The pages of the case diary have been changed. It is not in running pages. He next submitted that the case is not in running page since CD-XI dated 24.5.2013. Case diary is again in running pages since CD-XVI dated 18.6.2013. SCD is not in running pages what is written by Investigating Officer is different from annexures of the SCD (SCD was written by investigating officer Hirdesh Katheriya and it was superivsed by Sri Ajay Kumar). Sri Ajay Kumar remained associated with tainted investigation till end.
19. Learned counsel for the applicant next submitted that neither any report under Section 173(2) Cr.P.C. along with case diary was any further report under Section 173(8) Cr.P.C. along with case diary was brought to the Hon'ble High Court till 29.1.2018. The Cr.P.C. contemplates only report under Section 173(2) along with case diary or any further report under Section 173(8) along with case diary.
20. Learned counsel for the applicant next submitted that though there was sufficient material/ papers in the case diary indicating that the Hon'ble High Court is seized with the matter. The Cr.P.C. contemplates only one report under Section 173(2) Cr.P.C. with case diary or furuther report under Section 173(8) Cr.P.C. with the case diary.
21. Learned counsel for the applicant next submitted that the cognizance is taken in violation of Hon'ble High Court's order dated 10.5.2013 passed in the above contempt petition. He next submitted that the order of Hon'ble High Court dated 10.5.2013 was violated by the then Senior Registrar Sri Alok Mukherjee, investigating officers and supervisory officers and court below.
22. Learned counsel for the applicant next submitted that the Hon'ble High Court noted breach of it's order dated 10.5.2013 vide order dated 19.1.2018. He next submitted that there is complete violation of order dated 10.5.2013. Every act after 10.5.2013 was done in it's violation. No one except the Hon'ble High Court or Superior court is permitted to modify the order of the Hon'ble High Court.
23. Learned counsel for the applicant next submitted that in respect of Special Counsel/ APP I , who was appearing in above contempt petition at the relevant time on 10.5.2013 and in whose presence order dated 10.5.2013 was passed by the Hon'ble High Court, Government takes decision to withdraw from prosecution under Section 506 I.P.C.
24. Learned counsel for the applicant next submitted that the Court below rejected the application for withdrawal from prosecution. The rejection order was challenged in Criminal Revision No.1290/2017. The Hon'ble High Court examined government order in respect of withdrawal of prosecution under Section 506 IPC as well as application of the State for withdrawal and took suo motor cognizance of the matters, records finding that Public Prosecution had applied independent mind and rightly came to the conclusion that revisionist was neither on spot nor committed any offence. Criminal Revision No.1290/2017 became Revision of the Hon'ble High Court. The relevant portion of the order of Hon'ble High Court is being reproduced as under.
"Certified copy of the withdrawal application moved under Section 321, Cr.P.C. and the Government Order dated 14th March, 2017 shown to the court are taken on record.
.... This is an application having five grounds which reflects that the Public Prosecutor has independelty applied his mind and had gone through the material available on record and came to the opinion that the revisionist had not committed any offence, he was not on the spot, by observing that too on the basis of presumption that the revisionist has acted adversely affecting to the dignity of this court appears to be uncalled for."
25. Learned counsel for the applicant next submitted that in violation of order passed in Criminal Revision No.1290/2017 the application for withdrawal from prosecution was again rejected by the Court Below. The rejection order was challenged by the State in Criminal Revision No.711 of 2019 (State of U.P. v. Sudhir Kumar Srivastava) in which the informant was heard at the stage of delay, admission and final hearing, thereafter criminal revision was allowed by order dated 14.9.2020.
26. Learned counsel for the applicant next submitted that ignoring the orders of the two revisional court's order in criminal revision nos.1290/2017 and 711 of 2019, two separate orders one on application of the State for withdrawal from prosecution examined and upheld by the two Revisional Courts in the said criminal revisions but disowned by the State and other on State's Application dated 3.3.2021 pertaining to State's fresh application dated 23.9.2020 in respect of it's withdrawal were passed. The two orders led to filing of two separate criminal revisions i.e. Criminal Revision No.85/2021 (State of U.P. v. Krishna Kumar Pandey and Criminal Revision No.86 of 2021 (State of U.P. v. Krishna Kumar Pandey) by the State. The criminal revisions of the State were allowed on 30.4.2022.
27. Learned counsel for the applicant next submitted that as there was non-compliance of the order dated 14.9.2020 passed in Criminal Revision No.711 of 2019, Contempt Petition No.398 of 2022 was filed. During the pendency of this contempt petition, State's criminal revisions bearing Nos.85/21 and 85/21 were allowed, therefore for violation of order passed in Criminal Revision No.86/2021, contempt petition no.1337 of 2022 was filed.
28. Learned counsel for the applicant next submitted that it is pertinent to bring to the notice of Hon'ble High court and transfer application bearing C.M.C. No.646 of 2022 was filed before the learned District Judge. The C.M.C. No.646/2022 was allowed vide order dated 13.7.2022
29. Learned counsel for the applicant next submitted that the applicant again filed application dated 30.7.2022 for closure of the case under Section 506 IPC and State filed written submissions dated 30.7.2022 in support of it's order of the court below on application dated 30.7.2022 filed by the applicant. He next submitted that the Court Below i.e. Special A.C.J.M., C.B.I./ Ayodhya Prakaran, Lucknow again became aware of the above conclusive conclusion regarding alleged offence under Section 506 IPC through paras of the contempt petition nos.398 of 2022 and contempt petition no.1337 of 2022 and impleadment application dated 14.9.2022 containing application dated 30.7.2022 of the applicant as well as written submissions dated 30.7.2022 filed by the State.
30. Learned counsel for the applicant next submitted that after continuous orders of the Hon'ble High Court the Court Below filed affidavit of compliance in both the contempt petitions i.e. in contempt petition no.398/22 and in contempt petition no.1337/2022 on 17.10.2022. The Court Below has brought on record order dated 26.9.2022 said to have been passed in compliance of the order of Criminal Revision No.86 of 2021. The orders dated 17.10.2022 in contempt petition no.398/22 and in contempt petition no.1337/22 were passed.
31. Learned counsel for the applicant next submitted that in respect of orders dated 17.10.2022 in contempt petition no.398/2022 and in contempt petition no.13337/2022 recall application was filed and was not pressed. He next submitted that the order dated 26.9.2022 of the Court Below i.e. Special A.C.J.M., C.B.I./ Ayodhya Prakaran, Lucknow does not contain written submissions of the State filed on 30.7.2022. He next submitted that the order dated 26.09.2022 of the Court Below i.e. Special A.C.J.M., C.B.I./ Ayodhya Prakaran, Lucknow wrongly mentions submissions of State/ mentions submissions of State never made by State as is evident from written submissions of the State filed on 30.7.2022.
32. Learned counsel for the applicant next submitted that order dated 26.9.2022 of the Court Below i.e. Special A.C.J.M., C.B.I./ Ayodhya Prakaran, Lucknow which does not contain submissions of State, as is evident from written submissions of the State filed on 30.7.2022 would not qualify as legal order.
33. Learned counsel for the applicant next submitted that order dated 26.9.2022 by the Court Below i.e. Special A.C.J.M., C.B.I./ Ayodhya Prakaran, Lucknow is not confined to State's application dated 23.9.2020 for withdrawal and application's dated 21.12.2022 and 30.01.2021 filed in it's support. No objection was filed by the informant to these applications.
34. Learned counsel for the applicant next submitted that the order dated 26.9.2022 by the Court below i.e. Special A.C.J.M., C.B.I./ Ayodhya Prakaran, Lucknow is on State's application dated 9.6.2017 upheld in Criminal Revision No.1290 of 2017 by Hon'ble High Court and in Criminal Revision No.711/2019 by learned Sessions Court and never pressed by the State after the judgment and order dated 14.9.2020 in Criminal Revision No.711 of 2019 as is evident from the stand of the State indicated in para 1 of the written submissions of the State filed on 30.7.2022. After the judgment and order dated 14.9.220 in Criminal Revision No.711/ 2019 State's application dated 23.9.2020 for withdrawal was filed under changed circumstances. State's application dated 23.9.2020 is based on conclusive conclusion regarding alleged offence under Section 506 I.P.C. recorded in Criminal Revision No.711 of 2019 by learned Sessions court. The State confined only to it's application dated 23.9.2020 for withdrawal and applications dated 21.12.2020 and 30.01.2021 filed in it's support. No objection was filed by the informant in these applications.
35. Learned counsel for the applicant next submitted that order dated 26.9.2022 of the Court Below i.e. Special A.C.J.M., C.B.I./ Ayodhya Prakaran, Lucknow in sum and substance repetition in English of earlier set aside order dated 10.2.2021. He next submitted that above conclusive conclusion regarding alleged offence under Section 506 I.P.C. is not found mentioned in any order of any Magistrate including Special A.C.J.M., C.B.I./ Ayodhya Prakaran, Lucknow due to ulterior motive despite continuously bringing the same to their notice.
36. Learned counsel for the applicant next submitted that the applications filed by the applicant particularly application dated 29.11.2021 for summoning informant Krishna Kumar Pandey as accused, though pressed on each date, have been kept pending for extraneous reasons. He next submitted that the Court Below is proceeding against law due to extraneous considerations.
37. Learned counsel for the applicant next submitted that the orders in all the criminal revisions viz. Criminal Revision No.1290/2017, Criminal Revision No.711 of 2019 and Criminal Revision No.85 of 2021 as well as order dated 13.7.2022 passed in Criminal Misc. Case No.646 of 2022, Criminal Revision No.85 of 2021 and Criminal Revision No.86 of 2021 take note of the orders in Criminal Revision No.1290 of 2017, Criminal Revision No.711 of 2019.
38. Learned counsel for the applicant next submitted that there is no order of the Court below in compliance of the Criminal Revision No.85 of 2021 and on application dated 30.04.2022 filed by the State. He next submitted that a false case under Section 506 IPC has been instituted to harass and affect the parivi of the cases of the Basic Education Department.
39. Learned counsel for the applicant next submitted that after conclusive conclusion regarding alleged offence under Section 506 IPC made in Criminal Revision No.711 of 2019 the trial before the Court Below neither remains warrant trial nor summon trial nor summary trial. The proceedings before the Court below in respect of alleged offence under Section 506 IPC goes.
40. Learned counsel for the applicant next submitted that after examination of case diary including chargesheet and coming to definite conclusive conclusion regarding alleged offence under Section 506 IPC by learned Sessions Court in Criminal Revision No.711 of 2019 there was no legally valid chargesheet under Section 506 IPC to be acted upon by the court Below. Only formal order in respect of acceptance of withdrawal of the State as well as closure of the case under Section 506 IPC was required to be passed by the Court Below. He next submitted that the above conclusion regarding alleged offence under Section 506 IPC is not found mentioned in any order of Court Below despite continuously bringing the same to it's notice and the case under Section 506 IPC is being continued in violation of law.
41. Learned counsel for the applicant next submitted that despite continuous prayer for closure of case under Section 506 IPC by the applicant and acceptance of application for withdrawal from prosecution by the State the same has not been done.
42. Learned counsel for the next submitted that it is settled law by Hon'ble Supreme Court that court has a duty to issue appropriate directions for remedying or rectifying the things done in violation of the orders. In that regard the court may even take restitutive measures at any state of proceedings. It is also settled law that all Courts are vested with inherent powers to undo a wrong which may have occurred on account of a mistake of the court causing prejudice to a party.
43. In support of his submissions, learned counsel for the applicant has placed reliance upon the following judgments:
(i) ABCD v. Union of India and others reported in (2020)2 Supreme Court Cases 52.
(ii) Vidya Devi v. State of Himachal Pradesh and others reported in (2020) 2 Supreme Court Cases 569.
(iii) Smt. Sarita Singh v. State of U.P. reported 2022(40) LCD 871
(iv) Dr. J.S. Yadav v. Dr. Anil Kumar Upadhyay and others reported in 2022(40) LCD 1415
(v) Barangore Jute Factory PLC. Mazdoor Sangh (BMS) and others v. Baranagore Jute Factory PLC. And others report (2017)5 Supreme Court Cases 506
(vi) Delhi Development Authority v. Skipper Construction Co.(P) Ltd. and others reported (1996) 4 Supreme Court Cases 622.
(vii) A.V. Papyya Sastry and others v. Govt. of A.P. and others reported in (2007) 4 Supreme Court Cases 221
(viii) Hamza Haji v. State of Kerala and another reported in (2006) 7 Supreme Court Cases 416: 2006 SCC OnLine SC 842.
44. I have considered the submissions advanced by learned counsel for the applicant and have carefully examined the material on record in context of the controversy involved in the application that whether the procedure after order dated 10.5.2023 passed by this Court has been followed in accordance with law or not.
45. To understand the controversy from the initial stage, order dated 10.5.2013 passed by the Court is extracted hereinbelow:
"While proceedings in this case was going on, one Sri Krishna Kumar Pandey, Finance and Accounts Officer (Basic), District Ambedkar Nagar, who was present and whose matter (Criminal Misc. Case No.688 (C) of 2013) was just now decided, rushed inside the Court crying and weeping and shouted that he has been beaten outside the Court and his spectacles have also been damaged.
Registrar is directed to take appropriate steps of his safety and protection and lodge First Information Report against the erring persons. It shall be ensured that investigation in the matter shall be completed expeditiously, and, in any case within 15 days and the report shall be produced before this Court.
Since outside the Court, Advocates have created an unwanted and unruly scene, and Registrar has not made proper arrangement for smooth functioning of this Court, this Court has no opinion but to rise."
46. Perusal of the above-extracted order shows that direction was to the Senior Registrar to take appropriate steps of his safety and protection and lodge First Information Report against the erring persons and it shall be ensured that investigation in the matter shall be completed expeditiously, and, in any case within 15 days and the report shall be produced before this Court.
47. It is also pertinent to note that Sri Krishna Kumar Pandey, Finance and Accounts Officer (Basic), District Ambedkar Nagar has not named any persons before this Court who did this act.
48. Perusal of the letters dated 10.5.2013 of Sri Krishna Kumar Pandey and the Senior Registrar indicate that incident has been noted in the letters; thereafter, requested to give protection to Sri Krishna Kumar Pandey; and send Shri Kumar Pandey along with complaint dated 10.5.2013 to get an F.I.R. lodged immediately and ensure that the above matter is investigated by some officer not below the rank of Additional Superintendent of Police and take necessary action in accordance with law and submit report to this Court within 15 days so that the same may be placed before the Hon'ble court as directed.
49. At the time of lodging of F.I.R., names of certain persons have been included as named accused along with unknown advocates. On 15.5.2015, Investigating Officer has been changed and Circle Officer who is below the rank of Additional Superintendent of Police was made Investigation Officer and after investigation, the authority instead of producing the report before this Court as directed on 10.5.2023 submitted charge-sheet under Section 506 IPC before the Magistrate concerned, upon which cognizance was taken.
50. Taking into account the aforesaid aspects of the matter, the Coordinate Bench of this Cout vide order dated 29.1.2018, directed that in compliance of order dated 10.5.2013, the entire case diary be produced before this Court by some responsible officer of the Court of Additional Chief Judicial Magistrate-II, Lucknow on the next date fixed i.e. 29.1.2018.
51. In respect of Special counsel who was appearing in above contempt petition at the relevant point of time on 10.5.2013 and in whose presence order dated 10.5.2013 was passed by the Court, Government took decision to withdrawn from prosecution under Section 506 I.P.C. and filed an application for withdrawal from prosecution before the Court-Below which was rejected. Aggrieved by the said decision, Criminal Revision No.1290 of 2017 was filed and after examining the Government Order in respect of withdrawal of prosecution under Section 506 IPC as well as application of the State for withdrawal and takes suo moto cognizance of the matter, has recorded finding that Public Prosecutor had applied independent mind and rightly came to the conclusion that the revisionist (Special Counsel) was neither on the sport nor committed any offence.
52. Thereafter, an application for withdrawal from prosecution was also filed which was rejected. Aggrieved by the said rejection, Criminal Revision No.711 of 2019 (State of U.P. v. Sudhir Kumar Srivastava) was filed allowed with the following observations:
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53. This Court has once again directed to hear the matter after providing opportunity of hearing to the first informant.
54. Learned counsel for the applicant in support of submissions cited the several judgments operative portions of the judgment is extracted herein below.
(i) ABCD (Supra):-
16. It has also been laid down by this Court in Chandra Shashi v. Anil Kumar Verma [Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421 : 1995 SCC (Cri) 239] that a person who makes an attempt to deceive the court, interferes with the administration of justice and can be held guilty of contempt of court. In that case a husband who had filed a fabricated document to oppose the prayer of his wife seeking transfer of matrimonial proceedings was found guilty of contempt of court and sentenced to two weeks' imprisonment. It was observed as under: (SCC pp. 423-24 & 427, paras 1-2 & 14) "1. The stream of administration of justice has to remain unpolluted so that purity of court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned.
2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.
***
14. The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated document is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, therefore, guilty of contempt."
(ii) Vidya Devi (Supra) :-
12.13. In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it. [P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22]
(iii) Smt Sarita Singh (Supra):-
For Several years, in the State of Uttar Pradesh, the game of appointing teachers by the management of the educational institutions without prior permission for creation of posts and then coming to the court for payment of salary has been going on and, several thousands crore rupees of tax payers money has been paid to such appointees on the basis of interim/final orders passed by this Court. Therefore, it is not only committee of management and such appointees, who are Culprits, but the officials in the Education Department have equal share in the culpability.
(iv) Dr. J S Yadav (Supra):-
22. Thus, it can take note of such act and pass such orders under the contempt jurisdiction where the acts adversely affects the majesty of law or dignity of the Court. However, at the same time, it must be well remembered that the jurisdiction is not to protect the dignity of an individua judge but to protect the administration of justice from being maligned.
23. The Courts of law do not pass futile orders. However, once an order is passed, the same is binding on the parties and must be capable of being executed and complied with. It will be of no value if the Court is unable to get its orders complied with or else, the public shall loose faith and it would reflect most inappropriately on the judicial system. Thus, the orders passed by the Court have to be taken to their logical conclusion so that the faith of the public at large remains intact and the orders of the Court are not to be taken lightly by those who are bound to comply with the same.
(v) Mazdoor Sangh (supra) :-
23. As held by this Court in DDA v. Skipper Construction Co. (P) Ltd. [DDA v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622] , and going a step further, the Court has a duty to issue appropriate directions for remedying or rectifying the things done in violation of the orders. In that regard, the Court may even take restitutive measures at any stage of the proceedings.
(vi) Delhi Development Authority:-
The contemner should not be allowed to enjoy or retain the fruits of his contempt
17. The principle that a contemner ought not to be permitted to enjoy and/or keep the fruits of his contempt is well settled. In Mohd. Idris v. Rustam Jehangir Babuji [(1984) 4 SCC 216 : 1984 SCC (Cri) 587 : (1985) 1 SCR 598] this Court held clearly that undergoing the punishment for contempt does not mean that the court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one month's imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions in addition to punishing the petitioners for contempt of court. The argument was rejected holding that "the Single Judge was quite right in giving appropriate directions to close the breach (of undertaking)".
18. The above principle has been applied even in the case of violation of orders of injunction issued by civil courts. In Clarke v. Chadburn [(1985) 1 All ER 211] Sir Robert Megarry V-C observed:
"I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them."
19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd. v. S. Suppiah [AIR 1975 Mad 270 : (1975) 2 MLJ 54] and Sujit Pal v. Prabir Kumar Sun [AIR 1986 Cal 220 : (1986) 90 CWN 342] . In Century Flour Mills Ltd. [AIR 1975 Mad 270 : (1975) 2 MLJ 54] it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.
20. In Sujit Pal [AIR 1986 Cal 220 : (1986) 90 CWN 342] a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law.
21. There is no doubt that this salutary rule has to be applied and given effect to by this Court, if necessary, by overruling any procedural or other technical objections. Article 129 is a constitutional power and when exercised in tandem with Article 142, all such objections should give way. The court must ensure full justice between the parties before it.
(vii) A.V. Papayya Sastry (Supra) :-
21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed:
"Fraud avoids all judicial acts, ecclesiastical or temporal."
22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order--by the first court or by the final court--has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.
23. In the leading case of Lazarus Estates Ltd. v. Beasley [(1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502 (CA)] Lord Denning observed : (All ER p. 345 C) "No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud."
24. In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p. 644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was "mistaken", it might be shown that it was "misled". There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.
25. It has been said : fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).
26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of "finality of litigation" cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants.
27. In S.P. Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1] this Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". B approached this Court.
28. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as "wholly perverse", Kuldip Singh, J. stated : (SCC p. 5, para 5) "The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
(emphasis supplied)
29. The Court proceeded to state : (SCC p. 5, para 6) "A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
30. The Court concluded : (SCC p. 5, para 5) "The principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants."
31. In Indian Bank v. Satyam Fibres (India) (P) Ltd. [(1996) 5 SCC 550 : JT 1996 (7) SC 135] referring to Lazarus Estates [(1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502 (CA)] and Smith v. East Elloe Rural Distt. Council [1956 AC 736 : (1956) 1 All ER 855 : (1956) 2 WLR 888 (HL)] this Court stated : (SCC pp. 562-63, para 22) "22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court's business."
32. In United India Insurance Co. Ltd. v. Rajendra Singh [(2000) 3 SCC 581 : 2000 SCC (Cri) 726 : JT (2000) 3 SC 151] by practising fraud upon the Insurance Company, the claimant obtained an award of compensation from the Motor Accident Claims Tribunal. On coming to know of fraud, the Insurance Company applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company approached this Court.
33. Allowing the appeal and setting aside the orders, this Court stated : (SCC pp. 587-88, paras 15-17) "15. It is unrealistic to expect the appellant Company to resist a claim at the first instance on the basis of the fraud because the appellant Company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the Company to file a statutory appeal against the award. Not only because of the bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.
16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.
17. The allegation made by the appellant Insurance Company, that the claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without further probe into the matter, for the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards. The claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company. If we fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to a serious miscarriage of justice."
(viii) Hamza Haji (Supra):-
10. It is true, as observed by De Grey, C.J., in R. v. Duchess of Kingston [2 Smith LC 687] that:
" 'Fraud' is an extrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts, ecclesiastical and temporal."
11. In Kerr on Fraud and Mistake, it is stated that:
"In applying this rule, it matters not whether the judgment impugned has been pronounced by an inferior or by the highest court of judicature in the realm, but in all cases alike it is competent for every court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud."
12. It is also clear as indicated in Kinch v. Walcott [1929 AC 482 : 1929 All ER Rep 720 : 141 LT 102 (PC)] that it would be in the power of a party to a decree vitiated by fraud to apply directly to the court which pronounced it to vacate it. According to Kerr:
"In order to sustain an action to impeach a judgment, actual fraud must be shown; mere constructive fraud is not, at all events after long delay, sufficient ... but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury."
(See 7th Edn., pp. 416-17)
13. In Corpus Juris Secundum, Vol. 49, para 265, it is acknowledged that:
"Courts of record or of general jurisdiction have inherent power to vacate or set aside their own judgments."
In para 269, it is further stated:
"Fraud or collusion in obtaining judgment is a sufficient ground for opening or vacating it, even after the term at which it was rendered, provided the fraud was extrinsic and collateral to the matter tried and not a matter actually or potentially in issue in the action."
It is also stated:
"Fraud practised on the court is always ground for vacating the judgment, as where the court is deceived or misled as to material circumstances, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fair."
14. In American Jurisprudence, 2nd Edn., Vol. 46, para 825, it is stated:
"Indeed, the connection of fraud with a judgment constitutes one of the chief causes for interference by a court of equity with the operation of a judgment. The power of courts of equity in granting such relief is inherent, and frequent applications for equitable relief against judgments on this ground were made in equity before the practice of awarding new trials was introduced into the courts of common law.
Where fraud is involved, it has been held, in some cases, that a remedy at law by appeal, error, or certiorari does not preclude relief in equity from the judgment. Nor, it has been said, is there any reason why a judgment obtained by fraud cannot be the subject of a direct attack by an action in equity even though the judgment has been satisfied."
15. The law in India is not different. Section 44 of the Evidence Act enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. The provision therefore gives jurisdiction and authority to a court to consider and decide the question whether a prior adjudication is vitiated by fraud. In Paranjpe v. Kanade [ILR (1882) 6 Bom 148] it was held that: (ILR p. 148) "It is always competent to any court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud;"
16. In Lakshmi Charan Saha v. Nur Ali [ILR (1911) 38 Cal 936 : 15 CWN 1010] it was held that: (ILR p. 936) "[T]he jurisdiction of the Court in trying a suit [questioning the earlier decision as being vitiated by fraud,] was not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by the fraud of the defendant. The Court could and must rip up the whole matter for determining whether there had been fraud in the procurement of the decree."
17. In Manindra Nath Mittra v. Hari Mondal [(1919) 24 CWN 133 : AIR 1920 Cal 126] the Court explained the elements to be proved before a plea of a prior decision being vitiated by fraud could be upheld. The Court said: (AIR p. 127) "With respect to the question as to what constitutes fraud for which a decree can be set aside, two propositions appear to be well established. The first is that although it is not permitted to show that the Court (in the former suit) was mistaken, it may be shown that it was misled, in other words, where the Court has been intentionally misled by the fraud of a party and a fraud has been committed upon the Court with the intention to procure its judgment, it will vitiate its judgment. The second is that a decree cannot be set aside merely on the ground that it has been procured by perjured evidence:"
18. The position was reiterated by the same High Court in Esmile Uddin Biswas v. Shajoran Nessa Bewa [132 IC 897 : AIR 1931 Cal 649 (2)] . It was held that: (AIR p. 650) "[I]t must be shown that the fraud was practised in relation to the proceedings in Court and the decree must be shown to have been procured by practising fraud of some sort, upon the Court:"
19. In Nemchand Tantia v. Kishinchand Chellaram (India) Ltd. [(1959) 63 CWN 740 : AIR 1959 Cal 776] it was held that: (CWN p. 740) "A decree can be reopened by a new action when the court passing it had been misled by fraud, but it cannot be reopened when the court is simply mistaken; when the decree was passed by relying on perjured evidence, it cannot be said that the court was misled."
20. It is not necessary to multiply authorities on this question since the matter has come up for consideration before this Court on earlier occasions. In S.P. Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1 : 1993 Supp (3) SCR 422] this Court stated that: (SCC p. 2, para 1) "It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eye of the law. Such a judgment/decree--by the first court or by the highest court--has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."
The Court went on to observe that the High Court in that case was totally in error when it stated that there was no legal duty cast upon the plaintiff to come to the court with a true case and prove it by true evidence. Their Lordships stated: (SCC p. 5, para 5) "The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
21. In Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education [(2003) 8 SCC 311 : 2003 Supp (3) SCR 352] this Court after quoting the relevant passage from Lazarus Estates Ltd. v. Beasley [(1956) 1 All ER 341 : (1956) 2 WLR 502 : (1956) 1 QB 702 (CA)] and after referring to S.P. Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1 : 1993 Supp (3) SCR 422] reiterated that fraud avoids all judicial acts. In State of A.P. v. T. Suryachandra Rao [(2005) 6 SCC 149] this Court after referring to the earlier decisions held that suppression of a material document could also amount to a fraud on the Court. It also quoted (at SCC p. 155, para 16) the observations of Lord Denning in Lazarus Estates Ltd. v. Beasley [(1956) 1 All ER 341 : (1956) 2 WLR 502 : (1956) 1 QB 702 (CA)] that: (All ER p. 345 C) "No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."
22. According to Story's Equity Jurisprudence, 14th Edn., Vol. 1, para 263:
"Fraud indeed, in the sense of a Court of Equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another."
23. In Patch v. Ward [(1867) 3 Ch App 203 : 18 LT 134] Sir John Rolt, L.J. held that:
"Fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the court in ignorance of the real facts of the case, and obtaining that decree by that contrivance."
24. This Court in Bhaurao Dagdu Paralkar v. State of Maharashtra [(2005) 7 SCC 605] held that: (SCC p. 607) "Suppression of a material document would also amount to a fraud on the court. Although, negligence is not fraud but it can be evidence on fraud."
25. Thus, it appears to be clear that if the earlier order from the Forest Tribunal has been obtained by the appellant on perjured evidence, that by itself would not enable the Court in exercise of its power of certiorari or of review or under Article 215 of the Constitution of India, to set at naught the earlier order. But if the court finds that the appellant had founded his case before the Forest Tribunal on a false plea or on a claim which he knew to be false and suppressed documents or transactions which had relevance in deciding his claim, the same would amount to fraud. In this case, the appellant had purchased an extent of about 55 acres in the year 1968 under Document No. 2685 of 1968 dated 2-6-1968. He had, even according to his evidence before the Forest Tribunal, gifted 5 acres of land to his brother under a deed dated 30-1-1969. In addition, according to the State, he had sold, out of the extent of 55.25 acres, an extent of 49.93 acres by various sale deeds during the years 1971 and 1972. Though, the details of the sale deeds like the numbers of the registered documents, the dates of sale, the names of the transferees, the extents involved and the considerations received were set out by the State in its application for review before the High Court, except for a general denial, the appellant could not and did not specifically deny the transactions. Same is the case in this Court, where in the counter-affidavit, the details of these transactions have been set out by the State and in the rejoinder filed by the appellant, there is no specific denial of these transactions or of the extents involved in those transactions. Therefore, it stands established without an iota of doubt as found by the High Court, that the appellant suppressed the fact that he had parted with almost the entire property purchased by him under the registered document through which he claimed title to the petition schedule property before the Forest Tribunal. In other words, when he claimed that he had title to 20 acres of land and the same had not vested in the State and in the alternative, he bona fide intended to cultivate the land and was cultivating that land, as a matter of fact, he did not have either title or possession over that land. The Tribunal had found that the land was a private forest and hence has vested under the Act. The Tribunal had granted relief to the appellant only based on Section 3(3) of the Act, which provided that so much extent of private forest held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him and that does not exceed the extent of the ceiling area applicable to him under Section 82 of the Kerala Land Reforms Act, could be exempted. Therefore, unless the appellant had title to the application schedule land and proved that he intended to cultivate that land himself, he would not have been entitled to an order under Section 3(3) of the Act. It is obvious that when he made the claim, the appellant neither had title nor possession over the land. There could not have been any intention on his part to cultivate the land with which he had already parted and of which he had no right to possession. Therefore, the appellant played a fraud on the Court by holding out that he was the title-holder of the application schedule property and he intended to cultivate the same, while procuring the order for exclusion of the application schedule lands. It was not a case of mere perjured evidence. It was suppression of the most vital fact and the founding of a claim on a non-existent fact. It was done knowingly and deliberately, with the intention to deceive. Therefore, the finding of the High Court in the judgment under appeal that the appellant had procured the earlier order from the Forest Tribunal by playing a fraud on it, stands clearly established. It was not a case of the appellant merely putting forward a false claim or obtaining a judgment based on perjured evidence. This was a case where on a fundamental fact of entitlement to relief, he had deliberately misled the Court by suppressing vital information and putting forward a false claim, false to his knowledge, and a claim which he knew had no basis either in fact or on law. It is therefore clear that the order of the Forest Tribunal was procured by the appellant by playing a fraud and the said order is vitiated by fraud. The fact that the High Court on the earlier occasion declined to interfere either on the ground of delay in approaching it or on the ground that a second review was not maintainable, cannot deter a Court moved in that behalf from declaring the earlier order as vitiated by fraud.
26. The High Court, as a court of record, has exercised its jurisdiction to set at naught the order of the Forest Tribunal thus procured by the appellant by finding that the same is vitiated by fraud. There cannot be any doubt that the Court in exercise of its jurisdiction under Article 215 of the Constitution of India has the power to undo a decision that has been obtained by playing a fraud on the Court. The appellant has invoked our jurisdiction under Article 136 of the Constitution of India. When we find in agreement with the High Court that the order secured by him is vitiated by fraud, it is obvious that this Court should decline to come to his aid by refusing the exercise of its discretionary jurisdiction under Article 136 of the Constitution of India. We do not think that it is necessary to refer to any authority in support of this position except to notice the decision in Ashok Nagar Welfare Assn. v. R.K. Sharma [(2002) 1 SCC 749 : 2001 Supp (5) SCR 662] .
55. I have carefully examined the material available on record in the light of law-reports cited by learned counsel for the applicant.
56. Vide order dated 10.5.2013, this Court specifically directed the Senior Registrar to lodge the F.I.R. against erring persons and give protection, but FIR has not been registered as per the direction contained in the order dated 10.5.2013 as F.I.R. names certain persons including Special Counsel. Prior to filing of FIR, Sri Krishna Kumar Pandey has not stated any names before this Court nor any name has been mentioned in any of letters written in compliance of the order dated 10.5.2013. In this view of the matter, this Court is of the opinion that the name of certain persons has been implicated due to ulterior motive which is contrary to the direction contained in the order dated 10.5.2013.
57. The Senior Registrar specifically requested to the S.S.P. to ensure that the matter is investigated by some officer not below the rank of Additional Superintendent of Police, but after some days, the investigation officer has been changed without obtaining permission from this Court.
58. In the order dated 10.5.2013, there was a specific direction that report shall be produced before this Court, but without complying with the direction of this Court the report has been submitted before the Magistrate concerned upon which cognizance was taken. In this view of this matter, this Court is of the opinion that the procedure after the order dated 10.5.2023 has been followed not in accordance with direction contained in the order of this Court.
59. In the investigation, nothing has been found against any persons who have been named in the F.I.R. as accused. Therefore, the Government took decision to withdraw the prosecution under Section 506 and filed application twice which have been rejected. The Coordinate Bench of this Court has concurrently observed that Public Prosecutor had applied independent mind and rightly came to the conclusion that the revisionist (Special Counsel) was neither on the sport nor committed any offence, but the said observation has not been taken into by the Court-Below while rejecting the application for withdrawal.
60. Perusal of the judgments relied upon by learned counsel for the applicant shows that the High Court is a court of plenary jurisdiction. The High Court being the court of record has the power to punish for contempt under Article 215 of the Constitution of India. A court of record being a court of superior jurisdiction is entitled to consider the question of its jurisdiction raised before it. Article 215 specifically confers upon the Court of record such powers including the power to punish for contempt of itself.
61. The contempt jurisdiction of the High Court is not only to ensure the compliance of the orders passed by the Court but also to strike at such acts which tend to adversely affect the administration of justice or has a tendency to impede the course of justice which may shake public confidence in the judicial institution. Thus, it can take note of such act and pass such orders under the contempt jurisdiction where the acts adversely affects the majesty of law or dignity of the Court. However, at the same time, it must be well remembered that the jurisdiction is not to protect the dignity of an individual judge but to protect the administration of justice from being maligned.
62. It also shows that the Court has a duty to issue appropriate directions for remedying or rectifying the things done in violation of the orders. In that regard, the Court may even take restitutive measures at any stage of the proceedings. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice.
63. It is well settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first court or by the final court has to be treated as nullity by every court, superior of inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.
64. There cannot be any doubt that the Court in exercise of its jurisdiction under Article 215 of the Constitution of India has the power to undo a decision that has been obtained by playing a fraud on the court. In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it.
65. It is relevant to note that while considering the issue in regard to concealment of facts in the case of Smt. Sarita Singh (supra), the Coordinate Bench of this Court observed that for several years, in the State of Uttar Pradesh, the game of appointing teachers by the management of the educational institutions without prior permission for creation of posts and then coming to the court for payment of salary has been going on and several thousands crores of rupees of tax-payers money has been paid to such appointees on the basis of the interim/ final orders passed by this Court. Therefore, it is not only committee of management and such appointees, who are culprits, but the officials in the Education Department have equal share in the culpability.
66. Considering in totalities of facts and circumstances of the case as well as law-reports cited by learned counsel for the applicant, this application filed under Article 215 of the Constitution of India is allowed.
67. It is, however, directed that all the actions taken after 10.5.2013 being in violation of the order dated 10.05.2013 of the Hon'ble High Court in above contempt petition are hereby declared void and the entire proceedings relating to Section 506 I.P.C. in Case Crime no.207/2013, Case no.3922 of 2013, P.S. Wazirganj, District Lucknow is quashed. Record is returned to the concerned office.
68. Needless to say that notice is issued against Police Officers who have not submitted report before this Court as directed vide order dated 10.5.2013 to show cause as to why proceeding under Contempt of Courts Act be not initiated against them.
Order Date :- 26.07.2023 [Irshad Ali, J.]
GK Sinha